Opinion
111,902.
06-26-2015
STATE of Kansas, Appellee, v. Johnny DAVIS, Appellant.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Christopher R. Scott, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Christopher R. Scott, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., HILL and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
In this direct appeal, Johnny Davis claims the district court did not have jurisdiction to try him for an aggravated weapons violation because the prosecution had inserted the words “attempted to” into the complaint. In his view, this meant he was charged with an attempted aggravated weapons violation and, therefore, could not be convicted of the completed crime. We disagree because a close examination of the charging document reveals that Davis was not charged with an attempted crime. The words that Davis complains about are mere surplusage, and we hold the district court had subject matter jurisdiction to try this count. Accordingly, we affirm his convictions.
Additionally, Davis complains about a preliminary jury instruction given by the trial court to the jury before any testimony was heard which told the jurors that a mistrial is expensive and a heavy burden on the taxpayers. We agree that it was an error for the trial judge to insert such language into the instruction; but under the facts of this case, we hold it was not reversible error.
Davis contends the State failed to present sufficient evidence to prove him guilty of driving while his license was suspended or revoked. We hold to the contrary.
Finally, we do find an error in the classification of a prior burglary conviction and remand for a new sentence.
The arresting officer recognized Davis.
In late March 2013, Leavenworth Police Officer Wade Robinson, who had dealt with Davis many times, saw Davis' car make a turn without first signaling the turn. When Officer Robinson stopped the car for the traffic infraction he noticed that Davis was driving. The officer learned from his dispatcher that Davis' driving license had been suspended and, therefore, placed him under arrest and took him to jail.
Deputy Sheriff Carl Wilk was working in the Leavenworth County Jail that morning. Deputy Wilk performed a pat-down search of Davis when he entered the facility at around 2:30 a.m. Wilk said Davis was wearing a large trench coat over several layers of clothing. Wilk found no contraband on Davis. He asked Davis if he had anything on him, and Davis first responded that he did not. After a few moments, Davis said, “Hold on a second,” and produced a knife in a sheath from the waistband of his pants. The blade of the knife measured 5 and 3/4 inches in length.
The complaint alleged:
“That on or about the 26th day of March, 2013, in Leavenworth County, Kansas, Johnny Ray Davis, being a person who had within ten years preceding the aforesaid date of offense Johnny Ray Davis was convicted of a person felony under the laws of Kansas or any other jurisdiction, to-wit: Criminal Threat in violation of K.S.A. 21–3419(a)(l) from Leavenworth County District Court case 2009CR592, then and there being present did unlawfully and knowingly attempt to; carry concealed on his/her person a dangerous or deadly weapon, to-wit: a dangerous knife, contrary to K.S.A.2011 Supp. 21–6302(a)(2). In violation of K.S.A.2011 Supp. 21–6305(a)(2) & (b)(1), Aggravated Weapons Violation by a Convicted Felon, a severity level 9 nonperson felony.” (Emphasis added.)
At trial, Davis explained he had allowed someone to borrow his car. He normally asked people to park the car in the back of his home. He thought he heard someone returning the car so he went to the back door in the kitchen. Davis testified he lived in an old house and in order to lock the back door he stuck a chair under the door handle and put the knife in between the doorjamb and the door. When Davis went to the back door, he had pulled out the knife to unlock the door. Davis saw that his car had not been returned.
At about the time he realized his car had not been returned, a woman told him that his car was about 4 and 1/2 blocks away. Davis walked to the location of his car. Davis testified he put the knife in his pants and it just slipped his mind until he was at the jail.
Davis also testified he was aware of the suspension of his driving privileges. Davis acknowledged he never paid a reinstatement fee to have his license returned. He also said he believed he had a valid license because he received a letter stating his license was eligible for reinstatement as of February 17, 2013.
The court instructed the jury on the weapons charge as follows:
“The defendant is charged with aggravated weapons violation by a convicted felon. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. The defendant knowingly carried, concealed on defendant's person, a dangerous knife.
“2. The defendant had been convicted of a qualifying felony.
“3. This act occurred on or about the 26th day of March, 2013, in Leavenworth County, Kansas.
“A defendant acts knowingly when the defendant is aware his conduct was reasonably certain to cause the result complained about by the State.”
After hearing the testimony and reviewing the exhibits, the jury convicted Davis of an aggravated weapons violation by a convicted felon and driving a motor vehicle while his driving privileges were suspended. The district court classified Davis' criminal history score as A. The court sentenced Davis to 16 months' imprisonment for the aggravated weapons conviction and a consecutive 12 months' imprisonment for the driving while suspended conviction.
Davis contends the district court lacked subject matter jurisdiction over the aggravated weapons charge because it was charged as an attempt and not the completed crime. The State claims this issue was raised for the first time on appeal, and the doctrine of invited error applies because Davis failed to object to the jury instructions. The State argues that if the doctrine of invited error does not apply, Davis' argument should be denied because he was clearly placed on notice about the charges against him.
In a criminal case, the district court acquires jurisdiction upon the filing of a complaint, indictment, or information. State v. Edwards, 281 Kan. 1334, 1338, 135 P.3d 1251 (2006).
“ ‘As long as the complaint, indictment, or information alleges the elements of the offense intended to be charged, sufficiently apprises the defendant of the facts he or she must be prepared to meet, and is specific enough to determine a subsequent plea of double jeopardy, the district court has subject matter jurisdiction.’ [Citations omitted.]” 281 Kan. at 1338.
Subject matter jurisdiction may be raised at any time, whether for the first time on appeal or even on the appellate court's own motion. State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010). Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. State v. Charles, 298 Kan. 993, 1002, 318 P.3d 997 (2014).
Attempt is defined in K.S.A.2014 Supp. 21–5301(a) : “An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration therof or is prevented or intercepted in executing such crime.” According to K.S.A.2014 Supp. 21–5301(c)(l), an attempted aggravated weapons violation would be a severity level 10 nondrug felony.
This complaint does not charge Davis with an attempted aggravated weapons violation.
If we examine this complaint carefully, we discover none of the usual wording associated with a charge of an attempted crime. First, there is no language alleging that Davis committed an overt act toward the perpetration of the crime of aggravated weapons violation with the intent to commit that crime. Also, there is no allegation that Davis failed in the perpetration of the crime or was intercepted in the execution of the crime as listed in the attempt statute. The complaint here charges Davis with a severity level 9 felony, not a severity level 10 felony. An aggravated weapons charge is a severity level 9 felony while an attempt would be a severity level 10. There is no mention of the attempt statute, K.S.A.2014 Supp. 21–5301(a), in this charge.
If the words “attempted to” were erased from this complaint it would then be a standard charge for an aggravated weapons violation. All of the elements of K.S.A.2014 Supp. 21–6302(a) are found in this charging document.
K.S.A.2014 Supp. 21–6302(a) provides: “Criminal carrying of a weapon is knowingly carrying: ... (2) concealed on one's person, a ... dangerous knife, ... or any other dangerous or deadly weapon or instrument....” And K.S.A.2014 Supp. 21–6305(b)(1) states: “Aggravated weapons violation by a convicted felon is a severity level 9, nonperson felony for a violation of ... subsection (a)(1) through (a)(4) of K.S.A.2014 Supp. 21–6302, and amendments thereto.”
In our view, the complaint here sufficiently apprised Davis of the facts the State intended to use in its case against him.
We dismiss Davis' due process complaint.
Davis argues he was denied his right to due process because the jury found him guilty of a completed crime when he was charged with an attempt. He correctly quotes the United States Constitution “require[s] criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” United States v.. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). But because the jury found Davis guilty of the crime charged, we need not address this issue and it is dismissed.
Ancillary to this issue is Davis' complaint about the elements instruction the trial court gave the jury on this charge. We have set that instruction out in the facts and need not repeat it here. Suffice it to say, all of the elements of that charge were set out correctly in that instruction. We find no error here. We now turn to the preliminary jury instructions.
The court did give an erroneous preliminary instruction to this jury.
The district judge provided the jury with preliminary instructions which included the following statement:
“You must not engage in any activity or [be] expose[d] to any information that might unfairly affect the outcome of this case. Any juror who violates these restrictions I have explained to you jeopardizes the fairness of these proceedings, and a mistrial could result that would require the entire trial process to start over.
“As you can imagine, a mistrial is an expense and inconvenience to the parties, the Court, and the taxpayers. If any juror is exposed to outside information or has difficulty in following these instructions, please notify the Court immediately.”
Evidently all of the preliminary instructions were given by the trial judge without the parties having an opportunity to see or comment on them or object to them before they were given. This procedure itself is problematic because it prevents the parties from lodging any objection they may have to those preliminary instructions.
We will consider this matter even though there was no contemporaneous objection to this instruction. Many times counsel do not have adequate opportunity to state their objections. This may be one of those times. See State v. Earsery, 199 Kan. 208, 214, 428 P.2d 794 (1967). In any event, Davis could have objected or asked for a sidebar conference to object to this erroneous instruction and did not. We now turn to the question of whether this instruction was clearly erroneous. See K.S.A.2014 Supp. 22–3414(3).
An appellate court uses a two-step process in determining whether the challenged instruction was clearly erroneous: (1) The court must determine whether there was any error at all by considering whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record; (2) if the court finds error, it must assess whether it is firmly convinced that the jury would have reached a different verdict without the error. Reversibility is subject to unlimited review and is based on the entire record. The party claiming error in the instructions has the burden to prove the degree of prejudice necessary for reversal. State v. Betancourt, 299 Kan. 131, 135, 322 P.3d 353 (2014). Therefore, Davis must show us that this is reversible error.
The instruction here was erroneous. In State v. Salts, 288 Kan. 263, 265–77, 200 P.3d 464 (2009), our Supreme Court addressed an Allen -type instruction. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). In Salts, our Supreme Court held: “[T]he language ‘[a]nother trial would be a burden on both sides' in PIK Crim.3d 68.12 is error.” 288 Kan. at 266. However, this language was provided both orally and written in the jury instruction before deliberations began without objection. Our Supreme Court further noted: “The PIK Committee should strike this language from this instruction. If the Committee believes that the message the State wishes to deliver—that jurors should treat the matter seriously and keep an open mind—should be communicated to criminal juries, then the pattern instruction should be changed to state exactly that.” 288 Kan. at 266–67.
Since Salts, the Kansas Supreme Court has consistently held that using this language is wrong. See, e.g., State v. Gleason, 299 Kan. 1127, 1180, 329 P.3d 1102 (2014) ; State v. King, 297 Kan. 955, Syl. ¶ 7, 305 P.3d 641 (2013) ; State v. Parks, 294 Kan. 785, 801, 280 P.3d 766 (2012). We must now decide if this error is a sufficient reason to reverse the conviction.
Most of what this court read in the preliminary instructions can be found in PIK Crim. 4th 50.010. The most offensive language, “As you can imagine, a mistrial is an expense and inconvenience to the parties, the Court, and the taxpayers” comes from some other source. These remarks are just as coercive and bring in extraneous matters just as badly as the instructions found in Earsery or Salts.
Davis cites Neely v. Travelers Ins. Co., 141 Kan. 691, 42 P.2d 957 (1935), to support his claim that a jury instruction which appeals to the financial interests of jurors as taxpayers is coercive and constitutes reversible error. Neely is distinguishable because the coercive comments were made after the jury had deliberated for a day. The district court read the following instruction: “ ‘ “There is little excuse for a hung jury. It is generally senseless and, too, generally arises out of personal quarrels or differences between the jurors. It is an abomination to any court, an abhorrence to taxpayers, and a reproach upon the members of the jury.” ‘ “ 141 Kan. at 693. Clearly, this instruction was found to be coercive and erroneous. 141 Kan. at 693–96.
Having considered all of this, we are not convinced that the jury would have reached a different verdict if this portion of the preliminary instruction had not been given. Looking at the entire record, the State presented evidence that sufficiently supported the verdict, even in light of the erroneous jury instruction. The officer at the jail testified about finding the knife. Davis admitted possessing the knife. He also admitted to his prior convictions. In other words, Davis has not met his burden to prove the degree of prejudice necessary for reversal. We hold even though the instruction was erroneous, we will not overturn the conviction because it was not clearly erroneous.
The State presented sufficient evidence to prove Davis was driving while his license was suspended or revoked.
In determining whether there was sufficient evidence to support a conviction, the appellate court generally will not reweigh the evidence or the credibility of witnesses. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). It is only in rare cases where the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. See State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983).
Officer Robinson testified he had dealt with Davis on many prior occasions. He observed the vehicle pull away from the curb and proceeded to make a right turn without the use of a turn signal. Officer Robinson stopped the vehicle and waited for a second officer to arrive. Officer Robinson approached the vehicle and immediately recognized Davis as the driver. After speaking with Davis, Officer Robinson returned to his patrol car and ran Davis' information through communications. Officer Robinson was informed that Davis' driving license was suspended or revoked. After Officer Robinson returned to Davis' vehicle, he explained the driving license situation. Davis mentioned he knew he was not supposed to be driving, but he was just bringing the vehicle home after someone had borrowed it earlier that day.
Davis also testified about his knowledge of his suspended driving license. He was asked if he had received notice in the mail at his address advising him his license had been suspended. Davis' response was not clear, however, it appears he had received notice at some point. Davis testified he was in the process of getting his license reinstated, and it was to be reinstated as of February 17, 2013. Davis stated:
“Due to the fact of utility bills and things like that, I never paid the money to go get my license, or I would've had a valid license. But at that time, they weren't valid; they were just—I didn't have no license. But I already suffered and paid the penalty of the ... restricted from this point to this point.”
Davis acknowledged he never paid a fee; however, he believed his license was valid because the suspension period had ended.
In addition to this testimony, the jury considered Davis' redacted and unredacted certified driving records. The jury also reviewed the suspension/revocation notices, which Davis argues are conflicting.
Davis claims there was insufficient evidence to prove he had the requisite knowledge provided in the jury instruction. The instruction stated:
“The defendant is charged with driving a motor vehicle while the defendant's driving privileges were suspended. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. The defendant drove a motor vehicle.
“2. The defendant's driving privileges were suspended by the division of motor vehicles.
“3. The defendant had knowledge that his driving privileges had been suspended by the division of motor vehicles.
“4. This act occurred on or about the 26th day of March 2013, in Leavenworth County, Kansas.
“As used in this instruction, ‘proof of knowledge’ may be evidence of actual knowledge or by circumstantial evidence indicating a deliberate ignorance on the part of the defendant.
“Knowledge can be, but is not required to be, inferred from the fact that notification that the defendant's driving privileges had been suspended was mailed to at defendant's last known official address.
“A defendant acts knowingly when the defendant is aware his conduct was reasonably certain to cause the result complained about by the State.”
Davis received two letters from the State about his driving license. The first letter, dated December 19, 2008, provided there was a reinstatement fee owed in the amount of $100. The letter further stated Davis' license was suspended as of December 19, 2008. Davis' driving privileges were suspended because he failed to provide proof of liability insurance on his vehicle. According to the letter, Davis' license
“WILL REMAIN SUSPENDED UNTIL ONE OF THE FOLLOWING TWO REQUIREMENTS HAVE BEEN MET:
“1. IF YOU WERE INSURED AT THE TIME OF THE TRAFFIC STOP, HAVE YOUR INSURANCE AGENT SEND U.S. VERIFICATION THAT YOUR VEHICLE WAS INSURED AT THE TIME OF THE TRAFFIC STOP; OR
“2. IF YOU WERE NOT INSURED AT THE TIME OF THE TRAFFIC STOP COMPLETE BOTH OF THE FOLLOWING AND RETURN THEM TO US:
“A. OBTAIN INSURANCE AND HAVE YOUR INSURANCE COMPANY FILE EVIDENCE OF LIABILITY INSURANCE (SR22 OR EQUIVALENT) WITH US.
“B. PAY THE REINSTATEMENT FEE SHOWN ABOVE BY MAIL OR ONLINE....
“WHEN YOU HAVE MET THESE REQUIREMENTS, WE WILL SEND YOU A REINSTATEMENT NOTICE PROVIDED YOU HAVE NO OTHER ACTIONS AGAINST YOUR DRIVING PRIVILEGES IN THIS OR ANY OTHER STATE.”
Davis received a second letter which listed driving offense convictions within the preceding 5–year period. The letter dated February 17, 2010, provided:
“CONSEQUENTLY, YOUR DRIVING PRIVILEGES ARE REVOKED FOR THREE YEARS AS FOLLOWS:
“REVOCATION PERIOD: FROM 02/17/2010 TO 02/17/2013
“YOUR DRIVING PRIVILEGES WILL BE REINSTATED AT THE END OF THIS REVOCATION PERIOD WITHOUT FURTHER ACTION NEEDED ON YOUR PART PROVIDED THERE ARE NO OTHER ACTIONS AGAINST YOUR DRIVING PRIVILEGES IN THIS OR ANY OTHER STATE.”
Davis argues this letter did not mention any fines or other action required to reinstate his license. The State contends there is no evidence Davis complied with any of the requirements listed in the first letter. The State further claims that Davis' reliance on the second letter is misguided because he even testified he failed to make any payments. Additionally, there was no testimony that Davis complied with any of the other requirements of the notices of suspension or revocation.
It is the jury's role to determine the credibility of witnesses, weigh the evidence, and draw reasonable inferences from the evidence. State v. Burton, 35 Kan.App.2d 876, 882, 136 P.3d 945, rev. denied 282 Kan. 792 (2006). Here, the jury convicted Davis of driving while his driving privileges were suspended or revoked. Actually, Davis is asking us to encroach upon the role of the jury and weigh the evidence, which is not our function.
When we consider this evidence in the light most favorable to the State, as we are required by law to do, we hold there was sufficient evidence for the jury to conclude reasonably that Davis was driving with a suspended or revoked license.
We address the issue of the classification of Davis' prior convictions.
Davis argues that in light of State v. Murdock, 299 Kan. 312, 314–15, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014, the district court erred in classifying his pre–1993 Kansas convictions as person felonies. The State contends Davis invited any error that may have occurred because he did not object and any issues regarding his criminal history score are not properly before this court.
Two prior crimes affect Davis' criminal history. The first was a 1982 residential burglary, and the second was a 1984 aiding and abetting aggravated robbery. The State points out that Kansas courts have long classified in-state pre–1993 convictions for criminal history purposes according to the classification of the crimes' post–1993 equivalents.
Even though Davis did not object, we will resolve this matter by following the ruling in State v. Waggoner, 51 Kan.App.2d 144, 146, 343 P.3d 530 (2015), petition for rev. filed February 18, 2015. Waggoner conceded he did not object to his criminal history score in district court. While the State did not dispute that Waggoner could raise this issue for the first time on appeal, this court still agreed with Waggoner's claims. This court found:
“But as Waggoner notes, by challenging the accuracy of his criminal history score, he alleges an illegal sentence, and this court may consider his argument for the first time on appeal. See State v. Kelly, 298 Kan. 965, 975–76, 318 P.3d 987 (2014) (stating that a court ‘unquestionably’ may entertain an illegal sentence allegation for the first time on appeal); State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011) (stating that where a criminal history score is incorrect, the resulting sentence is an illegal sentence).”
Waggoner, 51 Kan.App.2d at 146.
Therefore, we will address the merits of Davis' argument on appeal.
A recent ruling from our Supreme Court offers guidance on this point in State v. Dickey, 301 Kan. ––––, ––– P.3d –––– 2015 WL 2445810 (No. 110,245, May 22, 2015). Citing with approval the methodology used by the United States Supreme Court in Descamps v. United States, 570 U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), our Supreme Court described the use of a categorical approach or a modified categorical approach by a sentencing court to determine if a prior conviction is a person crime for criminal history determination:
“A sentencing court applies the categorical approach when the statute forming the basis of the defendant's prior conviction contains a single set of elements constituting the crime. A sentencing court simply compares ‘the elements of the statute forming the basis of the defendant's conviction with the elements of the “generic” crime.’ [Descamps, ] 133 S.Ct. at 2281. If the elements of the prior conviction are the same as, or narrower than, the elements of the corresponding crime ..., then the prior conviction may be counted as a predicate offense for sentence-enhancement purposes.... [Citation omitted.]
“The modified categorical approach applies when the statute forming the basis of the prior conviction is a ‘divisible statute,’ i.e., a statute which includes multiple, alternative versions of the crime and at least one of the versions matches the elements of the generic offense. Descamps, 133 S.Ct. at 2281, 2283.” 301 Kan. at –––– (2015 WL 2445810, at *15 ).
We employ the categorical approach here and conclude that aiding and abetting aggravated robbery should be classified as a person felony. At the time of Davis' prior crime, 1984 Kansas law defined aggravated robbery as: “Aggravated robbery is a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.” K.S.A. 21–3427 (Ensley 1981). Even though the charge was for aiding and abetting aggravated robbery, Davis was still criminally responsible for the crime committed. See K.S.A. 21–3205 (Ensley 1981). At the time Davis committed his current crime, K.S.A.2014 Supp. 21–5420 defined aggravated robbery as:
“(a) Robbery is knowingly taking property from the person or presence of another by force or by threat of bodily harm to any person.
“(b) Aggravated robbery is robbery, as defined in subsection (a), when committed by a person who:
(1) Is armed with a dangerous weapon; or
(2) inflicts bodily harm upon any person in the course of such robbery. ”
(Emphasis added.)
This wording is virtually identical. Since aiding and abetting aggravated robbery is now a person felony, we hold Davis' prior conviction for aiding and abetting aggravated robbery should also be scored as a person crime since there is no appreciable difference in the language of the two statutes. Therefore, the district court did not err in scoring this crime as a person felony for purposes of criminal history.
In turn, the 1982 conviction for burglary is problematic. At that time, burglary was was defined as: “knowingly and without authority entering into or remaining within any building, mobile home, tent or other structure, or any motor vehicle aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony or theft therein.” K.S.A. 21–3715 (Ensley 1981).
We must now apply K.S.A.2014 Supp. 21–6811(d) here. Under that statute, a prior burglary conviction or adjudication will be classified as a person felony if the prior burglary involved a dwelling. A dwelling is defined as a building or portion thereof, a tent, a vehicle, or other enclosed space which is used or intended for use as a human habitation, home, or residence. K.S.A.2014 Supp. 21–5111(k).
We note that none of the elements in the burglary statute in effect when Davis committed his crime, required the structure to be a dwelling, i.e., “used or intended for use as a human habitation, home, or residence.”
In our view, the Kansas Supreme Court has resolved this issue in Dickey. The facts in Dickey are almost identical to the facts here, as Dickey involved the defendant's challenge to the classification of his 1992 Kansas juvenile adjudication of burglary as a person felony for criminal history purposes.
In Dickey, our Supreme Court ruled that under K.S.A. 22–3504(1), a defendant may challenge for the first time on appeal the classification of his or her prior convictions and/or the resulting criminal history score used to sentence him or her under the Kansas Sentencing Guidelines Act. 301 Kan. ––––, Syl. ¶ 3. The court also ruled that a stipulation or lack of an objection regarding how those convictions should be classified as a matter of law for the purpose of determining the defendant's criminal history score will not prevent a subsequent challenge under K.S.A. 22–3504(1) of his or her prior convictions. 301 Kan. ––––, Syl. ¶ 4.
The Dickey court found the holding in Murdock inapplicable to determining whether a prior burglary conviction or adjudication should be classified as a person or nonperson offense because the classification of a prior burglary conviction or adjudication for criminal history purposes is now controlled by K.S.A.2014 Supp. 21–6811(d). 301 Kan. ––––, Syl. ¶ 6. The court further found that the constitutional protections described in Apprendi are implicated when a district court, for purposes of enhancing a defendant's sentence for a current conviction, makes findings of fact at sentencing that go beyond merely finding the existence of a prior conviction or the statutory elements that make up the prior conviction. 301 Kan. ––––, Syl. ¶ 7.
Finally, the Dickey court held that the district court was constitutionally prohibited from classifying the defendant's prior burglary adjudication as a person felony under K.S.A.2014 Supp. 21–6811(d) because, to do so, the district court would have to make or adopt a factual finding—the prior burglary involved a dwelling—that went beyond simply identifying the statutory elements that constituted the prior burglary adjudication. Because burglary of a dwelling was not included within the statutory elements making up the defendant's burglary conviction under K.S.A. 21–3715 (Ensley 1981), the burglary conviction should have been classified as a nonperson felony for criminal history purposes. 301 Kan. ––––, Syl. ¶ 8.
Consequently, the sentencing court would be required to engage in factfinding to determine if Davis' burglary conviction was a person crime. Such factfinding is now prohibited by the United States Supreme Court under Descamps, Apprendi, and the Kansas Supreme Court's holding in Dickey.
Because burglary of a dwelling as defined in K.S.A.2014 Supp. 21–5111(k) was not included within the elements of the statute which was the basis for Davis' charge, his burglary conviction should have been classified as a nonperson felony.
By following the analysis in Dickey, we find the district court did err in classifying Davis' pre–1993 residential burglary conviction as a person felony for purposes of criminal history scoring.
We therefore vacate Davis' sentence, dismiss his due process complaint, and remand for resentencing with directions to classify his 1982 burglary conviction as a nonperson felony. All other issues are affirmed.
Affirmed in part, dismissed in part, sentence vacated, and case remanded with directions.